Electronic Rights At The U.S. Border: What They Can Search

About a million travelers enter the United States every day. You might be familiar with the process. Regardless of citizenship, people who legally enter the U.S. face some sort of screening by Customs and Border Protection. But exactly what rights do people have at the borders? And when searching for drugs or contraband, is the government also allowed to look through the data on people's phones or laptops?

Those questions have recently been tested in federal courts. And this past week, we got one judge's answer. The government can, without a warrant or reasonable suspicion, seize and search American travelers' electronic devices at U.S. borders.

Susan Stellin is a contributor to The New York Times, and she's been writing about this case and others. She says in general, different rules apply to searches at U.S. borders.

SUSAN STELLIN: Despite the fact that there's a Fourth Amendment against unreasonable search and seizure, there's always been what's known as the border search exception to that, meaning the government has a right to look for contraband, which might be drugs, child pornography or the like, or inspect things to a degree that they wouldn't be able to do without a warrant if you were inside the U.S.

RATH: But we'd always, I think, thought about that being, like you were saying, drugs or contaminated farm, you know, issues, but not information you have in your devices.

STELLIN: Well, that's an area where, you know, the courts are kind of slowly catching up to technology. For a long time, people didn't necessarily, you know, have all this information on devices when they left the country. And, you know, court cases have kind of been working their way through the system challenging whether or not border agents have the right to not only ask you to turn on and hand over your cellphone, a camera, for example, or your laptop, and potentially search and even detain that device for a period of time to do more extensive search, which might involve, you know, looking for keywords for different types of activity.

RATH: So let's break down what actually happened in the case that was decided this week. Can you explain who is Pascal Abidor and what happened when he tried to cross the border in 2010?

STELLIN: He's a graduate student studying Islamic studies, and he was returning from Canada to New York on an Amtrak train. And when they checked his passport...

RATH: U.S. passport, which is a U.S. citizen, right?

STELLIN: He is a U.S. citizen. He also has a French passport. So he was detained and taken off the train and questioned for several hours. And his devices that he was carrying were searched. And his laptop was kept for 11 days. And when he got it back, there was evidence that, you know, the government had looked at different files or opened different things on his computer. So he became a party to a lawsuit challenging whether or not the government has a right to search your devices.

What the judge found in this case is that the government does not even need reasonable suspicion to search or detain your electronic devices, that that was a standard that doesn't apply at the border.

RATH: You know, it's interesting the judge that ruled against Abidor wrote that these searches are actually very infrequent. So how often do these kind of searches take place?

STELLIN: Well, according to the statistics I've been given by Customs and Border Protection, the device searches happen about 15 times a day. What's harder to confirm is whether or not this is an accurate count. And there had been a document that came out as a result of a foyer request by the ACLU that indicated that the CBP wasn't maintaining a good system of counting or cataloging these device searches. So we don't really know if these are accurate statistics or what they're counting.

RATH: We traditionally thought of border and customs patrol agents, they're keeping things out, you know, like drugs, contraband, child pornography, those sort of things, and not so much engage in this sort of level of national security, one might say, information acquisition.

STELLIN: Well, that's really the question is, you know, particularly for the more cursory cellphone searches when the cellphone's taken out of your sight, what is happening? You know, is the data being copied? Is it being mixed with other data? You know, anybody who travels to the U.S., there is a file on you as a traveler that includes a lot of information about where you've been, when you've left the country, when you've entered the country. And that mixes with other information the government has in kind of a pretty broad network of databases that most people don't know exists.

And, you know, I've even interviewed people who, you know, someone who returned to the U.S., forgot she had an apple in her bag, was traveling with small children from abroad. When she went to apply for one of the trusted traveler programs, she was asked about this apple incident. And she had forgotten it had even happened, it had been so inconsequential to her. But yet that had made its way into her file.

When you start mixing that with information that you might be carrying on a laptop or a cellphone or a tablet, what happens behind the scenes is kind of still an open question.

RATH: That's Susan Stellin. She's a contributor to The New York Times. She joined us from our New York bureau. Susan, thank you.